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Knerr v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

October 8, 2014

MICHELLE KNERR APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES and MINOR CHILD APPELLEES

APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT [NO. JV-2013-169] HONORABLE BARBARA ELMORE, JUDGE

Suzanne Ritter Lumpkin, for appellant.

No response.

WAYMOND M. BROWN, Judge

Appellant appeals from a circuit court order terminating her parental rights to M.K.[1] Appellant's counsel has filed a motion to be relieved as counsel and a no-merit brief pursuant to Linker-Flores v. Arkansas Department of Human Services, [2] and Arkansas Supreme Court Rule 6-9(i), [3] stating that there are no meritorious grounds to support an appeal. Appellant has not filed pro se points. In addition to explaining why the termination decision is not a meritorious ground for reversal, appellant's counsel listed six additional adverse rulings, as required by Arkansas Supreme Court Rule 6-9(i)(1)(B). Our review of the record reveals that appellant's counsel failed to address two additional adverse rulings; however, for reasons discussed below, we affirm and grant counsel's motion to be relieved.

Heather Barnes received permanent custody of M.K. on August 2, 2011.[4]Appellant's parental rights were not terminated. Barnes returned M.K. to DHS's custody on May 30, 2013, asserting that she could no longer take care of M.K.[5]

Upon M.K.'s return to custody, DHS was unable to contact appellant. Accordingly, M.K. had no visitation with appellant during this case. On August 23, 2013, DHS filed its petition to terminate appellant's rights on the grounds that appellant had abandoned M.K.[6] and had subjected M.K. to aggravated circumstances due to abandonment.[7]

Bridgette Rappold, caseworker, testified at the January 21, 2014 termination hearing. Her testimony revealed that, despite M.K.'s having been back in DHS's custody since May 2013, appellant did not contact DHS until October 28, 2013. Even then, appellant did not inquire on M.K.'s well-being, only on how to recoup money she had sent to Barnes after M.K. had been returned to foster care.[8] It was not until appellant attended a January 10, 2014 staffing that appellant asked about M.K.[9]

At the time of the termination of parental rights hearing, appellant had not visited with M.K. since custody was awarded to Barnes in 2011. Furthermore, appellant had not provided any documentation showing that she had obtained a psychological evaluation, that her name was on the lease to the home she lived in with a roommate, [10] or that she had provided any financial assistance to Barnes while M.K. was in Barnes's custody. Appellant also had not begun parenting classes and had not provided a viable relative placement for M.K.[11]

Appellant also testified at the termination hearing. She said she called M.K. once per week. She also stated that she asked to visit M.K. at least once per month and that "almost every time" she asked, Barnes would not allow her to visit M.K. She stated that Barnes said no because "the court wouldn't allow it" and acknowledged that Barnes "was trying to protect M.K."

Appellant testified that she gave Barnes a total of $447.50 between 2011 and 2013 for "whatever M.K. needed."[12] She never paid child support. She believed she currently had the means to take care of M.K. because she was getting $240 in cash assistance from the state, $340 in food stamps, "about $50 per week" from Mary Kay sales "if [she] really work[ed] at it, " and would begin a job the following day that would pay "$8 an hour for seven hours a week."[13] During the course of the case, appellant had not held a job for an extended period of time.[14]

As for her living situation, appellant failed to bring a copy of the lease to prove that her name was on it because she "totally forgot about it." She stated that she lived with her son, a roommate, and the roommate's daughter.[15] She didn't advise on what she would do if her roommate asked her to leave because, she stated, "[her roommate] wouldn't do that." However, she did advise that her "financial well-being right [then was] in no small part dependent on [her and her roommate's] ability to live together because [her roommate was] paying the bulk of the rent." In the time since M.K. was removed from appellant's custody, appellant had lived in Mississippi, Illinois, and three different addresses in Texas.

Appellant testified that "if Heidi had been able to take care of M.K., [she] would've preferred that over [appellant] having M.K." at that point because appellant was "not completely ready for M.K. to come back to [her]." Appellant acknowledged both that there wasn't any reason why she would not want M.K. to stay where she was if it were shown that she was doing well and thriving and that M.K. had been waiting long enough; however, she noted that she would want supervised visitation on a regular basis. She stated that "[p]robably within two months[, ] [she was] going to be on [her] feet and be able to provide for [M.K.]." She later qualified that she would need "at least two more months." She stated that she wanted to be reunited with M.K.

Heather Barnes testified that from the time she received custody of M.K., she received phone calls from appellant "maybe once or twice a month, if that." She stated that appellant spoke to M.K. "maybe once or twice in the time [Barnes] had [M.K.]" because Barnes gave M.K. a choice on whether she wanted to speak to appellant and "generally M.K. said she didn't want to talk to [appellant]."[16] Barnes denied that appellant requested visitation with M.K. monthly. She advised that appellant asked for visitation with M.K. over spring ...


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